Testimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact.

Under this Rule, it is well established that "the credibility of a witness is a question solely for the jury's determination.” So, how could the Court of Criminal Appeals of Alabama explain its recent opinion in Foster v State, 2009 WL 2657615 (Ala.Crim.App. 2009)? The answer: It didn't.

In doing a Westlaw search for "Rule 704," I came upon 2009 WL 2657615, the dissenting opinion in Foster v. State. That dissenting opinion indicated that the conviction of the defendant, Travis Jay Foster, was "AFFIRMED BY UNPUBLISHED MEMORANDUM." It also laid out some of the details of Foster's trial and the basis for his appeal.

Apparently, Foster was accused of raping the victim, and Investigator Fred Sharp testified that the victim told her that Foster raped her and also rendered the following testimony:

"Q. [Prosecutor] Sir, I believe you had told us earlier you did interview [the victim] in this case, correct?

"A. [Inv. Sharp] Yes, sir, I did.

"Q. You did do what you classify as a forensic interview; is that correct?

"A. Yes.

"Q. You did look for those characteristics and things you've been taught in your training and experience to look for in determining whether a disclosure's credible or not; is that correct?

"A. Yes, sir.

Q. Based upon your forensic interview with [the victim], were you able to make a determination as to whether you felt that her disclosure was credible or not?

FN1 Foster had previously objected on grounds that Investigator Sharp's proposed testimony, vouching for the credibility of the victim, would invade the province of the jury and would violate the ultimate-issue rule. (R. 139-44.)

“THE COURT: I understand. Overruled.

“Q. What was that determination?

“A. I believe that [the victim] was credible in her disclosure.”

According to the dissenting judge, this testimony should have been deemed inadmissible under Alabama Rule of Evidence 704 because "the credibility of a witness is a question solely for the jury's determination.”

That judge indicated, however, that the majority reached the opposite conclusion by relying upon the court's previous opinion in Sanders v. State, 986 So.2d 1230 (Ala.Crim.App.2005). In Sanders, however, the court had found no problem with a forensic investigator's testimony that the victim was raped because "the ultimate issue...is whether the defendant had sexually abused the child, not whether the child had in fact been sexually abused." Conversely, in Foster, Sharp testified that the victim's disclosure that Foster had raped her was credible, which did go to the ultimate issue, albeit indirectly.

But just because Sharp's testimony did so indirectly did not make it admissible. In another part of Sanders, the court found that the trial court committed error (albeit harmless error) by allowing the defendant's ex-wife to testify that the victim's allegation that the defendant raped her was credible. The reason? The same reason used by the dissenting judge in Foster: The credibility of a witness is solely for the jury's determination.